1705458 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from the Democratic People’s Republic of Korea. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that they be a non-citizen in Australia. This criterion is a prerequisite for the grant of a protection visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had departed Australia in February 2019 and had not returned. Despite the Tribunal’s attempts to contact the applicant and her representative via email and mail, and subsequent unsuccessful attempts to reach the representative by phone, the applicant did not provide any information to contradict the movement records. The Tribunal was satisfied that all reasonable avenues to contact the applicant had been exhausted and that the applicant was not in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. The Tribunal affirmed the decision not to grant the visa, and it was not necessary to consider the substantive claims for protection.